In August, Gov. Bill Lee signed the Tennessee COVID-19 Recovery Act (the "Act"), which offers healthcare providers protection from liability for some kinds of COVID-19 claims.
The Act applies to a large number of individuals and businesses, including individual and institutional healthcare providers who are "licensed, authorized, certified, registered, or regulated" under titles 33, 63, and 68 of the Tennessee Code. It also protects providers practicing under federal law or an executive order of the governor. Titles 33, 63 and 68 govern many different healthcare providers, including physicians, dentists, pharmacists, hospitals, ambulatory surgical treatment centers, assisted-care living facilities and substance abuse treatment facilities.
The Act protects providers for claims of loss, damage, injury or death "arising from COVID-19." Under the Act, claims arise from COVID-19 if they are caused by or result from the actual or possible exposure to or contraction of COVID-19, or if they result from services, treatment, or other actions in response to COVID-19. The Act lists several examples of such claims, including claims based on COVID-19 testing, the delay or modification of scheduling or performance of a medical procedure, and closing or partially closing to prevent or minimize the spread of COVID-19.
The Act permits plaintiffs to bring a claim arising from COVID-19 only if there is clear and convincing evidence that the harm was caused by an act or omission constituting gross negligence or willful misconduct, and these requirements are considerably higher than the standards in a typical civil lawsuit. In a typical civil case, the plaintiff must prove her case by a preponderance of the evidence by demonstrating that her allegations are more likely true than false. In contrast, under the clear and convincing evidence standard, the plaintiff's evidence must eliminate any serious or substantial doubt about the facts.
Similarly, the Act raises the burden on plaintiffs by requiring them to prove that the healthcare provider's acts or omissions were gross negligence or willful misconduct rather than ordinary negligence. In general, ordinary negligence is the failure to use the degree of care that a reasonably prudent person would exercise in a similar situation, and gross negligence describes a negligent act committed with a complete lack of concern for the safety of others and indicates conscious neglect of one's duty or an uncaring indifference to the consequences of one's actions.
The distinctions between negligence, gross negligence, and willful misconduct are not always clear, and that is especially true in the context of the COVID-19 pandemic because our ideas about the level of care that a reasonably prudent person should exhibit continue to develop as we learn more about the virus. However, an example from another area may be helpful: negligence might involve speeding on the interstate, and gross negligence might involve speeding in a school zone with significant pedestrian traffic.
The Act also imposes certain procedural requirements on plaintiffs. Specifically, it requires them to file a verified complaint that includes a certificate of good faith. The certificate must state that the claimant or her attorney has consulted with a physician licensed in Tennessee or a contiguous bordering state and that the physician has signed a written statement that he or she believes the plaintiff's alleged loss was caused by an act or omission of the defendants.
Although the Act provides significant protection, providers will be required to understand the timing any COVID-19 claim against them to determine whether they can take advantage of the Act's protections. The Act is effective Aug. 17, 2020 and does not apply to claims filed after July 1, 2022. Significantly, the Act applies retrospectively to all claims arising from COVID-19 unless a claim was filed on or before Aug. 3, 2020, or a plaintiff provided statutory notice of such claim on or before that date.
The Tennessee Constitution generally prohibits laws that apply retroactively, and it seems likely that plaintiffs will challenge the retrospective application of the Act. Although Tennessee courts have permitted the legislature to enact retrospective laws in certain circumstances, the legal analysis can be complicated, and it is difficult to predict whether the Tennessee Supreme Court will permit the Act to apply to claims that arose before Aug. 17, 2020.
Providers that cannot take advantage of the Act may still have some protection from liability for COVID-19 claims under an executive order that Gov. Lee signed on July 1, 2020 ("EO 53"). EO 53 is similar to the Act, but it has its own limitations. For example, EO 53 applies to "healthcare providers licensed, certified, or authorized under titles 33, 63, or 68" of the Tennessee Code, but it does not state that it applies to providers who are practicing under an executive order. Prior executive order have suspended titles 63 and 68 to allow out-of-state providers to practice in Tennessee. Consequently, there is an argument that these providers are not "licensed, certified, or authorized under titles 33, 63, or 68" and are therefore not covered by EO 53. Gov. Lee signed an executive order terminating EO 53 on Aug. 17, 2020, to coincide with the effective date of the Act.
Ultimately, although the Act provides significant protection to healthcare providers, the full scope of its protection may not be fully understood for many months.
Nate Lykins is an associate in the Nashville office of Waller, which also has offices in Chattanooga and Memphis. Lykins focuses on the regulatory aspects of healthcare from transactions to operational issues. For more information, go to wallerlaw.com.